This Thursday, the University of California Board of Regents is set to consider adopting a new policy that would establish a “right” to be “free from acts and expressions of intolerance” on campus. The policy would prohibit, among other things, “hate speech [and] derogatory language reflecting stereotypes or prejudice.” It would also single out specific forms of expression, including “Depicting or articulating a view of ethnic or racial groups as less ambitious, less hardworking or talented, or more threatening than other groups” and “questioning a student’s fitness for a leadership role or whether the student should be a member of the campus community on the basis of race, religion, ethnicity, national origin, citizenship, sex, or sexual orientation.”
As UCLA law professor Eugene Volokh notes, the policy would officially condemn anyone who advocates against illegal aliens serving as student members of the California Board of Regents. It would also condemn, as Volokh puts it, “Articulating a view that there are cultural (or even biological) differences between ethnic and racial groups in various fields . . . without regard to the arguments for or against the particular assertion.” More ominous still, the proposed policy declares that “the University will respond promptly and effectively to reports of intolerant behavior and treat them as opportunities to reinforce the University’s Principles Against Intolerance.”
As my colleague Charlie Cooke observed to me today, liberals are less than one week removed from furious and sanctimonious invocations of the “rule of law” in support of their demands that Kim Davis issue marriage licenses for same-sex couples. Where is the Left’s love for the rule of law on campus? While there is not (yet) any specific federal court order striking down the proposed University of California policy, its language violates the terms of every federal court decision evaluating campus speech codes anywhere in the U.S., including in California. Simply put, no federal court has ever upheld such sweeping prohibitions on speech.
Let’s take California. In 2007 San Francisco State University put its chapter of the College Republicans on trial for desecrating the name of Allah. At an anti-terrorism rally, members of the College Republicans stomped on paper representations of the flags of Hamas and Hezbollah, which contain the name “Allah” written in Arabic script. Bear in mind, this is a school where activists routinely burn or otherwise desecrate the American flag. Students charged the College Republicans with “attempts to incite violence and create a hostile environment” and “actions of incivility.”
At the time, I worked for the Alliance Defending Freedom, and we filed suit, seeking an injunction against California State University–system policies that mandated “civility” and prohibited conduct that was “inconsistent” with the university’s “goals, principles, and policies.” In response, the court not only enjoined two separate university policies, it noted that deliberately offensive speech is often the most effective form of expression, including in the context of the students’ anti-terrorism protest:
The mode of communication that the plaintiffs chose was controversial. To many in the audience, it seemed disrespectful and offensive. But it is these very characteristics that were critical to its effectiveness. A timid, tepid articulation of concern about terrorism likely would have been largely ignored — and certainly would not have provoked the discussion and debate that this rally precipitated.
This is exactly right, and it’s consistent with similar court rulings in Pennsylvania, Texas, Michigan, Wisconsin, and Georgia — including rulings that struck down university policies that banned “acts of intolerance” and even policies that banned speech that had the “purpose” of creating a “hostile” environment. It is, of course, also worth noting that the Supreme Court has categorically rejected the notion that the state may prohibit so-called “hate speech.”
Our colleges and universities are in the midst of a decades-long wave of lawlessness.
Fully aware of the law, universities try subtle means of enforcing speech codes while insulating themselves from judicial review. Such codes will often impose explicit, unconstitutional speech restrictions at the same time that they claim these restrictions are not intended to violate the First Amendment. The University of California’s proposed policy is no exception. It claims (hilariously) that it is not intended to be used as a basis for discipline or to suppress “educational, political, artistic, or literary expression of students in classrooms and public forums that is protected by academic freedom or free speech principles.” Yet the entire policy suppresses expression protected by free-speech principles.
#share#California State University lawyers tried this same argument in 2007. The court was not impressed:
What path is a college student who faces this regulatory situation most likely to follow? Is she more likely to feel that she should heed the relatively specific proscriptions of the Code that are set forth in words she thinks she understands, or is she more likely to feel that she can engage in conduct that violates those proscriptions (and thus is risky and likely controversial) in the hope that the powers-that-be will agree, after the fact, that the course of action she chose was protected by the First Amendment?
The University of California is, sadly, not an outlier in its flagrantly illegal attempts to police speech. Our colleges and universities are in the midst of a decades-long wave of lawlessness. As the Foundation for Individual Rights in Education has documented, more than 55 percent of American colleges and universities maintain at least one policy that substantially restricts constitutionally protected speech. Meanwhile, the systematic enforcement of an utterly lawless Obama-administration policy requiring colleges to prosecute sexual-assault allegations on campus, with a low standard of proof and minimal due-process protections for accused students, continues apace.
#related#Colleges suppress free speech, ruin innocent students’ lives, and raise a generation of victim-focused social -ustice warriors who are busy trying to close the marketplace of ideas. And they do it all in clear and knowing violation of the supreme law of the land. Some would call that a conspiracy to deprive students of their constitutional rights. I just call it American higher education.
— David French is an attorney and a staff writer at National Review.